In January 2006, the Estonian news portal published an article on its site about a ferry company, with readers leaving offensive comments below the article. Upon the request of the company’s lawyers, Delfi removed the offensive comments about six weeks after their publication, in March 2006.
But in April 2006, the ferry company sued Delfi. The Estonian court ruled that the comments were defamatory and Delfi was responsible for them, exacting 320 EUR in damages to be paid to the plaintiff.
Estonia’s Supreme Court found that Delfi’s role as an information society service provider or storage host was not merely technical, passive or neutral, and that the news portal exercised control over publishing comments.
Delfi then submitted an application to the European Court of Human Rights (ECtHR), which found that the domestic court ruling was justified and proportionate, since “the comments were highly offensive[, while] the portal had failed to prevent them from becoming public, profited from their existence, but allowed their authors to remain anonymous,” according to a June 10, 2015 press release issued by the Registrar of the ECtHR.
This case has precedent importance for websites which publish reader comments.
In Aravot.am chief editor Anna Israelyan’s opinion, a difficult period awaits Armenia’s media after the ECtHR ruling.
“At this time, I see some problems, the solutions of which are unknown. Are we talking about all platforms under a news outlet’s jurisdiction, including [its pages on] social media? Because, for example, Facebook does not allow for preliminary moderation of comments for us to determine beforehand whether a comment is offensive or not. And what will happen when our employee monitoring comments on social media is a little late, and during that time someone takes a screenshot (which they often do) that becomes grounds for liability?” she said.
According to Mediamax news agency chief editor David Alaverdyan, the judgment provides for notification and appeal mechanisms. The editorial office first has to be informed and warned that there are offensive comments, and only if the website doesn’t take appropriate action may the issue be challenged in court.
In Alaverdyan’s opinion, the ECtHR decision is well-balanced and reaches a compromise.
“On one hand, there’s a threat that the ECtHR ruling might somewhat restrict freedom of speech in Council of Europe member countries, including Armenia; on the other hand, there couldn’t have been a different ruling because as a result of offensive and defamatory comments, other fundamental freedoms were being violated,” he said.
The Mediamax chief editor finds that the solution for online news media is to hire moderator journalists or to divide the work of moderation among current journalists.
Media expert Samvel Martirosyan believes that the ECtHR judgment presents news outlets with the problem of resources.
“News outlets commit to not only subject comments to preliminary moderation, removing obvious profanities, but also check the published information in advance. This means that news outlets have to begin to either spend enormous human resources on verifying information or close comments, while the judgment provides wide opportunities for evildoers to constantly drag journalists to court for fake comments,” he says.
Yerevan Press Club President Boris Navasardyan considers the ECtHR ruling acceptable. In an interview with Aysor.am [AM], he said how the courts should treat such cases will be clearly defined from now on.
“If until now, editorial staff could say I’m not the author of this comment and I bear no responsibility for such comments and I’m not obliged to remove it from my website, well now such demagogic phenomena will be ruled out. If you have an editorial policy, then you are obliged to remove such comments,” he said.
Navasardyan also mentioned that incidents of restriction of freedom of speech by the authorities or interested parties are possible with this ruling. That’s why, he said, we must keep an eye on how the law is applied in judicial practice in Armenia.
OSCE Representative on Freedom of the Media Dunja Mijatović said that the ECtHR ruling may have a negative impact on freedom of expression and free media.
“This decision by the ECtHR on a specific case should not be used by participating States as a permission to introduce imprecise and vague liability regulations which may limit the right of freedom of expression on the Internet exercised by online media outlets,” Mijatović said. “Nor should the ruling be used to limit open discussion and dissemination of ideas on the Internet”.
“Media freedom on the Internet should be preserved and protected from undue interference and excessive regulations in order to avoid self-restrictions and any sort of chilling effect they might have,” she concluded.